Wednesday, July 24, 2002

NINTH AMENDMENT

As most of you are probably aware, Glenn Reynolds and others have recently had a flurry of posts on the 9th Amendment. Jeff Cooper correctly criticizes Justice Scalia for failing to live up to his textualist philosophy when it comes to that amendment, which explicitly envisions the possibility of unenumerated constitutional rights. He points to Scalia's dissent in Troxel v. Granville, a parents' rights case where Scalia thought it was dispositive that the Constitution simply did not enumerate a "right of parents to direct the upbringing of their children."

But I think Cooper goes a little too far in saying that "very few purported practitioners of strict constructionism are willing to adhere to their principles when it comes to the Ninth Amendment." Without mentioning any of these "very few" practitioners who are intellectually consistent, Cooper implies that there are none. But there is at least one very prominent person who fits the bill -- Justice Thomas.

Consider Thomas's concurrence in the same case, Troxel v. Granville. Thomas not only recognizes the right of parents to bring up their children as they see fit, but argues that it should be explicitly protected by "strict scrutiny," the most rigorous constitutional review available. (In that two-paragraph opinion, Thomas also manages to question two other lines of precedent, which must be a record even for him: He suggests that the enforcement of unenumerated rights under substantive due process might be invalid, and then suggests that the proper doctrine for such claims would be the Privileges or Immunities Clause of the 14th Amendment.) In short, Thomas is not necessarily to be grouped with Scalia on this issue.